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[2014] ZAFSHC 16
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S v Motloi and Another (42/2014) [2014] ZAFSHC 16 (28 February 2014)
IN THE HIGH COURT OF SOUTH AFRICA FREE STATE
DIVISION, BLOEMFONTEIN
Review No. : 42/2014
In the review between
THE STATE
versus
LETONYANA MOTLOI
MATASE MOTJOKOSEU
CORAM
:
VAN ZYL, J et REINDERS, AJ
JUDGEMENT BY:
VAN
ZYL,
J
DELIVERED
ON:
28 FEBRUARY 2014
[1]
This is a special review in accordance with the
provisions of
section 304A
of the
Criminal Procedure Act, 51 of 1977
.
[2]
The presiding magistrate, C.M. Mokgotho, set out the
relevant facts in a clearly written, detailed letter addressed to the
Registrar
of this Court. I therefore deem it apposite to quote the
contents of the said letter:
“
The two accused appeared before court on two
counts. They were legally represented by Mr Mokoena from Justice
Centre: Ladybrand.
The charges against the two accused were as follows:
Count 1: Corruption - giving a benefit in contravention
of the provisions of
Section 1(1
)(a) read with Section 3 of the
Corruption Act 94 of 1992.
Count 2: Illegal Foreigner in contravention of the
Immigration Act 13 of 2002
as amended by
Section 45(1
)(a) of Act 19
of 2004.
I took the pleas of both accused in respect of both
charges preferred by the State.
Mr Mokoena who represented both accused tendered a
written statement in terms of Section 112(2) of Act 51 of 1977 on all
the charges
preferred by the State.
I convicted both accused on both counts in accordance
with their pleas.
I did not impose any sentence to both accused and the
matter was remanded for sentence.
The conviction on count two (2) is in order.
The irregularity I committed was that as I was
researching for appropriate punishment, it came to my notice that the
Statutory Provision
that the Prosecution used or referred to on count
one was from the Act that was repealed in its totality.
Therefore, the conviction of both accused on count No. 1
is incorrect and should be set aside.
Furthermore, as count 2 is closely linked to count 1, it
may also be set aside.
May the matter be remitted back to Court for both
accused to be re-charged de novo before another judicial officer, in
Count 1,
the accused should have been charged in Contravention of
Section 21 read with Section 26 of Act 12 of 2004 (Prevention and
Combating
of Corrupt Activities, Act No. 12 of 2004).” (sic)
[3]
I agree that the conviction on count 2, being a
conviction in terms of an Act which has been repealed, indeed
constitutes an irregularity
and should be set aside.
[4]
From my reading of the details pertaining to the two
counts, it is evident that the said counts are in fact closely linked
as stated
by the presiding magistrate. If the convictions on count 1
are not set aside and count 2 is to be dealt with by a different,
newly
constituted Court, it will have the consequential result that
should the two accused be convicted on count 1 as well, two separate
sentences on the respective charges will be imposed by the two
different Courts. This will probably result in an injustice towards
the two accused. I consequently agree with the presiding magistrate
that it will be in accordance with justice for the convictions
on
count 2 to also be set aside.
[5]
I therefore make the following order:
The convictions of both accused on charge 1 and charge
2, are set aside.
The matter is referred back to the court a quo for both
accused to be recharged and to be prosecuted c/e novo before a
different
presiding magistrate.
C.
VAN
ZYL,
J
I concur.
C. REINDERS,
AJ